## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

1324 W. Pratt Con dom iniu m Ass’n v. Platt C onstru ction Group, In c. , 2012 IL App (1st) 111474

Appellate Court Caption 1324 W. PRATT CONDOMI NIUM AS SOCI ATI ON, PlaintiffAppellant, v. PL ATT CONSTRUCTI ON GROUP, I NC., De fe n dantAppellee (EZ Masonry
, Inc., Def endant- Appellee and Cross-Appellant).

District & N o. First District, F ourth Division Docke t No. 1-11-1474

Filed J une 21, 2012

Held (Note : Th is syl lab us

c ons ti tut es no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the R epo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The contra ctual waiver of the war ranty of habitability betwee n a develope r and the purcha sers of individual condo m i n i u m units did not extend to the gene ral contractor and a subcontrac tor in an act i o n b y the condominium association alleg ing brea ch of the implied war ranty of habitability due to f

aulty construction, nor did public policy support the extension of the waiver

to either c ontrac tor.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 08-L -014415; the Hon. Ronald F. B artkowitz, J udg e, pre siding.

J udg ment Reverse d.Counsel on

Appea l Robert W. Br unner, of L aw Offic e of Robert W. Br unner, of Chicag o, for appellant.

J oseph A. Bosc o and David J

. Be rault, both of L aRose & Bosc o, L td., and Marg are t A. Gisch, of Gola n & Christie, both of Chica g o, for a ppellee.

J oseph A. Bosc o and Br ian R. Kusper, both of L aRose & Bosc o, L td., of Chicag o, for a

ppellee a nd cross-a

ppellant EZ Masonry , Inc.

Panel J USTI CE FI TZGE R ALD SMI TH delivere d the judgme nt of the court, with opinion. Presiding J ustice L avin and J ustice Sterba concur red in the judgme nt and opinion.

OP INION

¶ 1 This is an appea l from the circ uit court’s order g ranting a motion to dismiss pursuant to section 2-619(a)(9) of the I llinois Code of Civil Procedur e (735 I L CS 5/2-619 (West 2008)) in favor of the defe ndant, Platt Construction Group, Inc. (her einaft er , P l att ), and the defe ndant, cross-a

ppellant, EZ Masonry
, Inc. (her einaf ter, EZ Masonry

), in an action by the plaintiff, 13 2 4 W

. Pratt Condomini um Association (her einaf ter the condominium association), to rec over damag es arising from faulty construction of a residential building under a brea ch of the implied war ranty of habitability claim. The condominium association contends t h at t h e circ uit court err ed in finding that it disclaimed the implied war ranty of habitability as to Platt and EZ Masonry and asks that we find the war ranty applicable to both of the defe ndants. For the rea sons that follow, we agree with th e plaintiff and reve rse the judgme nt of the circ uit court.

¶ 2 I . BA CKGROUND ¶ 3 The rec ord reve als the following rele vant and undisputed fac ts. Be tween 2004 and 2005, the develope r, 6801 N. Way ne L L C (her einaf

ter, Way ne), eng ag ed in the construction of an eig ht-unit residential building located at 1324 W. Pratt Boule vard in Chicag o, I llinois (her einaf ter, the building). In order to construct the building, Way ne enter ed into a contra ct with Platt, under which Platt was hired to act as the g ener al contra ctor for the projec t and was responsible for the overa ll construction of the building. In turn, Platt subcontract ed the
masonry work on the buildingto EZ Masonry

. ¶ 4 After Platt completed the building in Marc h 2005, Way ne sold the individual eig ht units

as condominiums, by enter in g i n t o a rea l estate contra ct with eac h of the individual

-2-condominium unit owner s. Platt and EZ Masonry never enter ed into any direc t contra cts with

the owner s. The rec ord contains a copy of what the parties agree is a repr esentative contra ct of all the contra cts enter ed into by Way ne with the individual unit owner s. Paragraph 10 of that contra ct is entitled “Homeowner’ s L imited Warranty” and provides the individual unit

owner s with a one-yea

r limit ed war

ranty for cer

tain structura l components in the units. Under the contract t h i s one-year limit ed war ranty expired a year afte r the date of closing or sometime in Marc h 2006. Section (b) of para g raph 10, howeve r, ex plicitly provides a disclaimer of

the implied warr anty

of habitability . That sec tion states in pertinent part:

“ (b) IMP LIED WARRANTY OF HABITABI LITY
Illin ois law provides that ever y contrac t for construct ion of a new hom e, as here,

carr ies wi th it a warranty that wh en com pleted, the new hom e wi ll be free of defects and wi ll be fi t for its i n tend ed use as a hom e. Thi s law fu rther provides that this Im plied Warranty does not have to be in writin g to be a part of the contrac t and it

cover s not only structural and m echanical defects such as m ay be fou nd in the fou ndation , roof, m asonry, heating, elec tric al and plu m bin g, but it also cover s any defect in workmanship wh ich m ay not easily be seen b y the Purchaser

. How ever , the law also provides that Seller and P urchaser m ay agree in writin g, as here, that this Implied Warranty is not includ ed as part of their particular contr act. (c) WAI VER-D I S C L AI MER. THE SEL L ER HEREBY DI SCL AI MS AND THE PURC HASER HEREBY WAI VES THE I MPL I ED WARR A N T Y O F H A B I T A B I L I T Y DESCRI BED I

N PARAGRAPH 10(B ) AB OVE AND THEY ACKNOWL EDGE, UNDERSTAND A

ND AGREE TH AT I T I S NOT PART OF THE CONTRACT. (d) Effe ctive [ sic ] and Consequence s of this W aiver -Disclaimer

. Purchase r acknow ledg es and understands that if a dispute arises with Seller and the dispute results in a lawsuit, Purcha ser will not be able to rely on the I mplied Warranty of Habitability descr ibed above, as a basis for suing the Seller or as a basis of a defe nse if Seller sues the Purchase r.” ( Emphases in orig inal.) ¶ 5 For rea sons not disclosed in the rec ord, Way ne was involuntarily dissolved on November 28, 2005. Soon there afte r, t he unitowner s discovere d water leaks a round windows, doors, ceiling s and vents in their units and common ar eas of the building. ¶ 6 The owner s of the individual units formed the plaintiff condominium association in or der
to repr esent their collective interests. On Dec ember 31, 2008, the condominium association filed its orig inal complaint ag ainst Way ne, Platt, and a roofing contra ctor (Ke lly Roofing, Inc.), which is not a party to the instant appea l. T h e co m p l ai n t alleg ed that leaks in the building had damag ed not only the phy sical structure of the building but al s o t h e unit

owner s’ persona l proper

ty , such as furniture and books. Moreove r, the complaint alleg ed that the water seepe d into the walls, causing mold to grow throughout the building and resulting in medical problems to some of the unit owner s, such as worsening ast h m a an d flu-like
sy mptoms. The condominium association reta ined a proper ty inspe ctor, who deter

mined that the leaks w ere due to a f

aulty roof a nd other c onstruction anomalies. ¶ 7 Acc ording to the complaint, the condominium association sent a letter to Platt advising i t o f t he leaks. Ba sed on the property inspector’ s finding that Platt was responsible for t h e

-3-defe cts, the condominium association reque sted that Platt repa ir t h e d efects. Platt never 1 responde d to the letter. The condominium association subse q u e ntl y a tt e mp te d to c o ntact Platt

on numerous occa sions, a g ain reque sting that Platt re pair the defe cts but Platt continued to ignor e these reque sts. ¶ 8 The complaint further alleg ed that in September 2008, the C hicag o are a ex perie nced a series of sever e rainstorms, which substantially worsene d the leaks in the building and

exacer bated the mold problem. As a result, the cond o mi nium association incurre d signific ant costs in repa iringthe leaks a nd removingthe mold from the building. ¶ 9 The orig inal complaint asser ted numerous cause s of action related to the alleg edly faulty construction of th e b u il d in g

. F our counts wer e direc ted ag ainst Platt, alleg ing: (1) neg lige nce; (2) brea ch of the implied war ranty of g ood workmanship; (3) brea ch of the implied war ranty of habitability : and (4) brea ch of contra ct under a third-par ty benefi ci ar y theory

. The condominium association soug ht da mag es for repa irs to the building itself, common are as, and individual units, as we l l as inspection and assessment costs for eng ineer ing and other construction expenses. ¶ 10 On April 7, 2009, Platt filed a motion to dismiss pursuant to section 2-615 of the I llinois Code of Civil Procedur e (Code) (735 I L CS 5/2-615 (West 2008) ) alleg ing that the orig inal complaint was confus i n g an d overly broad and failed to contain a “plain and concise statement” of the cause of action as require d by section 2-603 of the Code (735 I L CS 5/2-603 (West 2008)). In response , the condominium a ssociation filed its first amende d complaint,

rea ssertingits original a lleg ations in a more or derly fashion. ¶ 11 On J une 9, 2009, Platt filed a motion to dismi ss all f our counts ag ainst it unde r sec tion 2-619(a )(9) of t he C ode (735 I L CS 5/ 2-619(a )(9) (West 2008)). Amongother thing s, Platt argued that it could not be held liable under an implied war ranty of habitability theory b ecause the implied war ranty applies to “builder- vendors,” i.e.
, builders that not o n l y construct a residential building but that are also involved in the sale of the resi d en ce t o a purcha ser. The condominium association responde d that the implied war ranty of habitability has never been limit ed to only “b u i l der- vendors” and that the policies underly ing the

war ranty apply equally to mere builder s. ¶ 12 The c ircuit court a gree d with Platt and gra nted i ts motion to dismi ss on September 11, 2009. The condominium association’s subsequent motion to rec onsider wa s d enied on Dec ember

8, 2009. ¶ 13 On Dec ember 14, 2009, the condominiu m as s o ci at i o n fi l ed i t s s ec o n d amende d complaint, raising the same four counts it had all ege d i n i ts first amende d complaint, but adding sever al new defe ndants, including, rele vant to this appea l, the maso n r y subcontrac tor, EZ Masonry

. On this same date, the condominium association also moved for entry of final judgme nt on the dism i s s al of the counts ag ainst Platt enter ed on September 11, 2009. Pursuant to I llinois Supreme Court Rule 304(a) (ef f. J an. 1, 2006), the circ uit court enter ed

an order of final judgme nt on J anuar y 6, 2010, noting that there was no just rea son to delay the appe al of the dismissal. The c ondominium association imm ediately appea led.

A cop y of t his le tt eris at ta che d as an exh ibi t t o t he c om pla int

. 1

-4-¶ 14 Whil e the cause was pending befor e the appellate court, on J une 17, 2010, EZ Masonry

filed its motion to dismiss pursuant to se ction 2-619 of the Code (735 I L CS 5/2-619 (West 2008)), but that motion was sta y ed
, p ending a ruling from the appellate court with respe ct to the September 11, 2009, dismissal of the a ction ag ainst Platt. ¶ 15 On September 28, 2010, this ap p el l at e co u rt issued its ruling in the cause , inter alia
, reve rsing the trial cour

t’s dismiss al of the c ondominium association’s impl ied warranty of habitability claim ag ainst Platt and rema nding the cause to the circ uit court on that issue. See 1324 W

. Pratt Condominium Ass’n v . Platt Cons truction Group, Inc.
, 404 I ll. App. 3d 611 (2010). In doing so, the appellate court specific ally held that “the war ranty applies to builders of residential homes reg ardle ss of whether they are involved in the sale of the home.” 1324 W

. Pratt Condominium Ass’n
, 404 I ll. App. 3d at 6 1 8

. T h e co urt went on to note that it “express[ed] no opinion on the m erits of [t he condominium association’s] alleg ations, but [held] only that [t he condominium association] may maintain this particula r cause of action
ag ainst [P latt] .” 1324 W

. Pratt Condomini um Ass’n , 404 I ll. App. 3d at 618. ¶ 16 On Dec ember 20, 2010, the condominium association filed its third amende d complaint alleg ing only a brea ch of the i m p l ied war ranty of habitability claim ag ainst, inter alia
, Way ne, Platt and EZ Masonry

. ¶ 17 On J anuar

y 11, 2011, EZ Masonry filed its second motion to dismiss pursuant to se ction 2-619 of the Code (735 I L CS 5/2-619 (West 2008)), arguing that while the g ener al contra ctor (Platt) was solvent, it wa s improper to br ing a claim for the brea ch of the implied wa rra nty of habitability ag ainst a subcontrac tor, such as EZ Masonry

. In support of this contention, EZ Masonry cited to Minton v. The Richards Group of Chicago , 116 I ll. App. 3d 852 (1983). ¶ 18 On J anuar

y 31, 2011, Platt fi l ed a motion to dismiss pursuant to section 2-619 of the Code (735 I L CS 5/2-619(a) (9) (West 2008)), this time assert i n g t h at the individual condominium owner s had expli citly waived the implied war ranty of habitability in their rea l
estate contra cts to purcha se the condominium units. In support o f t h i s co ntention, Platt attache d a copy of the rele vant sections of a sample contra ct betwee n Way ne and the individual condominium owner s, which included an expli cit dis cl ai mer of the implied

war ranty of habitability

. Platt ar gued that since the war ranty was waived as to Way ne (the 2 vendor)
, the same doctrine was waived with respe ct to Platt (the g ener al contra ctor) and EZ Masonry (the subcontr actor). EZ Masonry orally joined Platt’s moti on to dismi ss. ¶ 19 On May 19, 2011, the circ uit c ourt g rante d Platt and EZ Masonry ’s joint section 2-619 motion to dismiss (735 I L CS 5/2-619(a) (9) (West 2008)) solely based up o n wa i v er of the implied war

ranty of habitability

. In doing so, the court specific ally discounted EZ Masonry ’s claim that while Platt was solvent, the condominium association could not g o forwa rd with its claim ag ainst EZ Masonry and denied EZ Masonry ’s m otion to dismiss on this ground. In a wr itten order e x plaining its rulingthe circ uit court stated:
“1. The First District’s decision in 1324 W

. Pratt Condominium Association v. Platt Construction Group, Inc.
, 404 I ll. App. 3d 611 (2010) has modified Minton v. Richards

T he re le vant pro visio ns of thi s sample re al est at e con tr act ar e at ta che d as exh ibi ts to t he 2

con dominiu m

as soc ia ti on’ s t hir d amendedcomplai nt.

-5-Group of Chicago , 116 I ll. App. 3d 852 (1983) and has ex tended the implied warra nty of habitability to subcontrac tors without the need to first show that the purcha ser has no

rec ourse to the builder and/or vendor. Correspondi n gl y , [p] laintiff [t he condominium association] may

asser t its i mplied warr anty

of habitability

claims ag ainst EZ Masonry without requiringa showingof insolvency on behalf of Platt Const ruction;
2. The waiver of the implied war ranty of habitability clause in the rea l estate contra ct betwee n the develope r [W ay ne] and plaintiff unit owner s attache d *** to plaintiff’s third amende d complaint meets the standards reg arding waiver set forth in Board of Managers of Village Centre Condominium Association v. W ilmette Partners
, 198 I ll. 2d 132 (2001) and is there fore valid;
3. The waive r o f i m p lied war ranty of habitability clause found in the rea l estate contra ct ***, although in a contra ct with only the seller [W ay ne], extends to other entities who may be liable under a theory of brea ch of implied war ranty of habitability
, including the g ener al contra ctor, Platt *** and subcontra ctor EZ Masonry ; and
4. The waiver of imp l i ed wa rr anty of habitability clause found in the rea l estate contra ct *** applies to claims for defe cts in the common are as of the building as well as to the individual units themselves.” The condominium association now appea ls the circ uit court’s dismiss al of its claim pursuant to section 2-619 of the Code (735 I L CS 5/ 2-619 (West 2008)).

¶ 20 I I . ANALYSI S ¶ 21 We initially note that o u r re v i ew o f t he circ uit court’s denial of a motion to dismi ss pursuant to section 2-619 of the Code (735 I L CS 5/2-619 (West 2008)) is de novo

. See Coady v. Harpo, Inc.
, 308 I ll. App. 3 d 1 5 3
, 158-59 (1999). When revie wing the denial of such a motion, we must acc ept as true all well-plea ded fac ts contained in the complaint and in any uncontra dicted af

fidavits attache d to the motion. Coady
, 308 I ll. App. 3d at 158-59. The question on revie w is “ ‘whe ther the exis tence of a g enuine issue of materia l fac t should have prec luded the dismiss al or, absent such an issue of fac t, whether dismiss al is proper as

a matter of law.’ ” Doyle v. Holy Cross Hospital
, 186 I ll. 2d 104, 110 (1999) (quoting Kedzie &103rd Currency Ex change, I nc. v. H odge , 156 I ll. 2d 112, 116-17 (1993)). ¶ 22 On appea l, the condominium association first contends that the circ uit court err ed when it found that the disclaimer of the implied war ranty of habitability applied to both Platt and EZ Masonry

. The condominium association points out that acc ording to the plain languag e of the disclaimer, that disclaimer applies only to the vendor (seller), Way ne, and not to any other party

. Acc ording to the condomini um association, Platt and EZMasonry wer e never part of any rea l estate contra cts enter ed into betwee n Way ne and the individual unit owner s, and never themselves enter ed into any other contra ct with the owner s. The condomi n i um association further argues that the circ uit court’s ruling
, extending the disclaimer to Platt and EZ Masonry
, is contra

ry to the public p o l i cy behind the implied war ranty of habitability
, which has alway s been to protec t p u rc h as er s of new homes from latent defe cts cre ated by faulty construction. F or the re asons that follow, we agree

. ¶ 23 We beg in by noting that the implied war ranty of habitability is a “c re at u re of public

-6-policy” that was desig ned “to p ro t ec t p urcha sers of new houses upon discovery of latent

defe cts in their homes.” Redarowicz v. Ohle ndorf , 92 I ll. 2d 171, 183 (1982). Historica lly
, the rule of cave at emptor g overne d sales of rea l proper ty and buyers could only rely on contra ct law in order to hold builders liable for defe cts in the construction of new homes. See Redarowicz
, 92 I ll. 2d at 180. This rule rema ined unchang ed in this country until 1957 when the implied war

ranty of habitability was first app l i ed

. S ee R edarowicz
, 92 I ll. 2d at 180 (citing Vanderschrier v . Aaron , 140 N.E.2d 819 (Ohio Ct. App. 1957))

. ¶ 24 The I llinois Supreme Court first rec og nized the war ranty of habitability in the landlordtenant context in Jack Spring, Inc. v. Litt le
, 50 I ll. 2d 351 (1972), and later ex p an ded the

war ranty to the sale of new homes in Peterse n v. Hubschman Construction Co.
, 76 I ll. 2d 31 (1979). Our supreme court has articulated a three fold public policy justifying the application of the implied war

ranty of habitability

. See B o a r d o f Di rectors of Bloomfield Club Rec reation Ass’n v. The Hoffman Group, Inc.
, 186 I ll. 2d 419, 425-26 (1999); VonHoldt v. Barba & Barba Construction, Inc
., 175 I ll. 2d 426, 430-31 (1997); Redarowicz
, 92 I ll. 2d at 183; Peterse n , 76 I ll. 2d at 39-40. First, purc haser s of new home s “g ener ally do not [have ] the ability to deter

mine whether the houses t h ey h av e purcha sed contain latent defe cts.” Bloomfield Club
, 186 I ll. 2d at 425. Second, “[t] he purcha ser needs this protec tion beca use, in most case s, [he or she] is making t h e l arge st single investment of his or her life and is

u s u al ly relying upon the honesty and competenc e of the builder, who, unlike the ty pical purcha ser, is in the business of building homes.” Bloomfield Club
, 186 I ll. 2d at 425. Third, “[i] f construction of a new house is defe ctive, its repa ir cost s should be borne by the responsible builder- vendor who cre ated the latent defe ct.” Redarowicz , 92 I ll. 2d at 183. ¶ 25 On the basis of this rationale
, and since its initial acc eptanc e in I llinois
, the war ranty has been s t ea dily expanded over the y ear s in order to serve the underly ing public policy of protec ting new hom eowne rs and holding v en dor-builder s acc ountable for latent defects in residenc es that they construct. See, e.g. , Redarowicz
, 92 I ll. 2d at 183 (expanding the class of plaintiffs with standing to sue for a violation of the im p lied war ranty of habitability to

succe ssive purcha sers); VonHoldt v. Barba & Barba Construction, Inc

. , 175 I ll. 2d 426 (1997) ( expanding the ty

pe of struc tures covere d by the warranty to include new additions
to exis ting buildings); McClure v. Sennstrom
, 26 7 I ll. App. 3d 277 (1994) (expanding the

w a r r anty of habitability to include a house built on a pree x isting foundation); Briarcliffe W e s t Townhou s e Ow n er

s Ass’n v. W

iseman Construction Co.
, 118 I ll. App. 3d 163 (1983) (expandingthe war

ranty to a vac ant common lot of a townhouse development) ; Herlihy v. Dunbar Buil d

er s Co r p ., 92 I ll. App. 3d 310 (1980) (expanding the war ranty to apply to

common elements of condomi n i u m s); Park v. Sohn
, 89 I ll. 2d 453 (1982) (expanding the class of potential defe ndants t o i n cl u d e a builder-ve ndor who is not in the business of building); Hefler v. W

right
, 121 I ll. App

. 3d 739 (1984) (expanding the class of potential defe ndants to include a builder who ere cted a house manufa cture d by another party ); Minton

v. The Richards Group of Chicago
, 116 I ll. App. 3d 852 (1983) (extending the war ranty to subcontrac tors wher e a builder-ve ndor i s i n s o lvent and the purcha ser has no available

rec ourse ag ainst it); Tassan v. United Dev elopmen t Co

. , 8 8 I ll. App. 3d 581 (1980) (extending the war

ranty to developer s). ¶ 26 In the orig inal decision in this case , we extended the implied war ranty of habitability

to

-7-apply to builders who ar e not ve ndors of the new homes. See 1324 W

. Pratt Condominium Ass’n
, 404 I ll. App. 3d at 618 (her einaf ter, Pratt I

) (“the war

ranty applies to builders of residential homes reg ardle ss of whether they are involved in the sale of the home”)

. In doing
so, we explained that the underlying policy of the war ranty was to pr otect the homeowner s and to apportion responsibility for latent d ef ec t s in the homes to the party responsible for

cre ating them, i.e.
, the builder. As we stated, “[t] hese policy considera tions result in the core principle of the implied war ranty of habitability : builder s are acc ountable for latent defe cts in residenc es that they construct.” 1324 W

. Pratt Condominium Ass’n
, 404 I ll. App. 3d at 617 (citing Bloomfie ld Club
, 186 I ll. 2d at 425). We, there fore
, found that the condominium association could pr ocee d ag ainst Platt, eve n though Platt had me rely been the builder, i.e. the g ener al contra ctor, and not the seller/vendor of the individual condominium units. 1324 W

. Pratt Condominium Ass’n
, 404 I ll. App. 3d at 617. Under our dec ision in Pratt I

, there

can be no doubt that the implied war ranty of habitability as such extends to and is applicable to Platt. S ee 1324 W

. Pratt Condomini um Ass’n , 404 I ll. App. 3d at 617. ¶ 27 Neve rtheless, in the prese nt case , the circ uit court found that the war ranty does not apply
to Platt beca

use of the disclaimer of the war ranty contained in the contra ct betwee n Way ne and the individual condominium owner s. After a revie w of the disclaimer, howeve r, we must disag ree with the circ uit court. ¶ 28 We beg in by noting that our supreme court has specific ally rec og nized that “a know ing disclaimer of the implied war ranty of habitability is not ag ainst the public policy of this

s t at e. ” Peterse n , 76 I ll. 2d at 43. Howeve r, our supreme court has also made clear that t h e burden of establishing a knowing waiver of the war ranty rests on the builder-ve ndor and that
any such disclaimer must be “strictly construed ag ainst the builder-ve ndor.” Peterse n , 76 I ll. 2d at 43. As our supre me cour t in Peterse n explained:
“ ‘[O] ne seeking the benef it of such a disclaimer must not only show a conspicuous provision which fully discloses the conseque nces of its inclusion but also that such was in fac t the agree ment rea ched. The heavy burden thus place d upon the builder is completely justified, for by his asser tion of the disclaimer he is seeking to show that the buy er has relinquished prote ction aff orded him by public policy

. A knowing waiver of this protec tion will not be rea dily implied.’ *** [C itation.] ” (Emphasis o m i t t ed.) Peterse n , 76 I ll. 2d at 43. ¶ 29 Cases subsequent to Peterse n , continue to follow this high s t an d ar d and hold that the burden for waiver of an implied war ranty by way of a disclaimer will be met only wher e: “(1) [t he disclaimer] is a conspicuous provision (2) which fully discloses the conseque nces of its inclusion (3) that was, in fac t, the agree ment of the parties.” Board of Managers of Chestnut Hills Condo mi nium Ass’n v. Pasquinelli, Inc.
, 354 I ll. App. 3d 749, 758 (2004); see also Herlihy
, 92 I ll. App. 3d at 317; Board of Managers of the Village Centre Condominium Ass’n v. W

ilmette Partners
, 198 I ll. 2d 132, 141 (2001) (holding that in order to disclaim the implied war

ranty of habitability
, the words “implied war ranty of habitability ” must be used in the di sclaimer and brought to the purc haser s’ attention); Colsant v. Goldschmidt
, 97 I ll. App. 3d 53, 56 (1981) (“A disclaim er d o es n o t neg ate an implied war ranty unless it is broug ht to the attention of the buyer a nd agree d to by

him.”).

-8-¶ 30 In the prese nt case , the plain languag e of the contra ct states t h at t h e i n d i v i du al unit

owner s disclaim the implied war ranty of habitability as to the seller, Way ne. As the contra ct clea rly states: “(b) I MPL I ED WARRANTY OF H AB I TAB I L I TY *** [T] he law *** provides that Seller and Purchaser may agree in writing
, as here
, that this I mplied Warranty is not included as par

t of their par

ticular c ontrac t. (c) WAI VER-DI SCL AI MER. THE SELLER HEREBY DI S C LAI MS AND THE PURCHASER HEREBY WAI VES THE I MPL I ED WARRANTY OF HAB I TAB I L I TY DESCRI BED I

N PA R AGRAPH 10(B ) AB OVE AND THEY ACKNOWL EDGE, UNDERSTAND A

ND AGREE TH AT I T I S NOT PART OF THE CONTRACT. (d) Effe ctive [ s ic ] and Consequence s of this Waiver-Disc laimer. Purchaser acknow ledg es and understands that if a dispute arises with Seller and the dispute results in a lawsuit, Purchaser will not be able to r ely on the Implied War ranty of Habitability descr ibed above, as a basis for suing the Seller or as a basis of a defe nse if Seller sues the Purchase r.” ( Emphases omitted and a dded.) ¶ 31 “The basic rules of contract int erpr etation are w el l settled.” Thompson v. Gordon , 241 I ll. 2d 428, 441 (2011). In construing a contra ct, the primary objective is to g ive eff ect to the intent of the parties. Thompson
, 241 I ll. 2d at 441; see also Virginia Surety Co. v. Northern Insurance Co. of

New Y ork
, 224 I ll. 2d 550, 556 (2007). I f the languag e of a contra ct is clea r and unambiguous, the intent of the parties must be deter mined solely from the languag e of the contra ct itself, which must be g iven its plain, ordinary and popular meaning

. Thompson
, 241 I ll. 2d at 441. Where the words of the contra ct are clea r, the contra ct should be enfor ced

as written. Thompson
, 241 I ll. 2 d at 441; Virginia Surety Co.
, 224 I ll. 2d at 556; see also Premier Title Co. v. Donahue , 328 I ll. App. 3d 161, 164 (2002). ¶ 32 Her e, the disclaimer provision could not be clea rer : it only applies to the seller, Way ne, and not to an y o t h er party , including Platt or EZ Masonry

. Even though the disclaimer provision is conspicuous, and discloses the conseque nces as to the relationship betwee n the seller (Way

ne) and the individual condominium purcha sers with respe ct to the implied

wa rr an t y of habitability
, there is nothing whatsoeve r in the contra ct to indicate that the individual unit owner s agree d to disclaim the war ranty as to Platt or EZ Masonry
, or that they

wer e even aware of t he possi ble consequence s of di sclaiming the warranty as t o these two parties. See Colsant
, 97 I ll. App. 3d at 56 (“A disclaimer does not neg ate an implied war ranty unless it is broug ht to the attention of the buy er and agree d to by him.”); Pasquinelli
, 354 I ll. App. 3d at 758 (the burden of waiver is met only wher e “(1) [t he disclaimer is] a conspicuous provision (2) which fully discloses the conseque nces of its inclusion (3) that was, infact, the
agreem ent of the parties ” (empha sis ad d ed ))

. S ince the public policy behind the implied

war ranty of habitability is to protec t homeowner s and to construe disclaimers strictly ag ainst builders-ve ndors (

Peterse n , 76 I ll. 2d at 43), we see no rea son why
, under the plain languag e of the afor ementioned disclaimer provision, we should attempt to circ umvent the clea r and unambiguous intent of the parties and extend the disclaimer to include parties other than the seller, Way

ne ( Thompson
, 241 I ll

. 2 d at 4 41). Acc ording ly
, we hold that, contra ry to the circ uit court’s interpr etation, the disclaimer does not apply

to either Platt or EZ Masonry

.

-9-¶ 33 In that respe ct, we reje ct t he circuit court’s appare nt relianc e on our earlier decision in

Pratt I. See 1324 W

. Pratt Condomini um Ass’n , 404 I ll. App. 3d at 618. I t appea rs that the circu i t co u rt reasoned that beca use in our decision in Pratt I
, we extended the implied

war ranty of habitability to apply to builders that are also not v endors, we should

corr esponding ly extend the disclaimer of any such war ranty to include nonvendor builders, i.e. Platt. Howeve r, as alre ady noted above, while t he im plied war rant y o f h abit ability is a creation of public policy
, any disclaimer of such a war ranty is g overne d by con t ra ct l aw

. Moreove r, the circ uit court’s rea ding of Pratt I would contra dict the public policy behind the implied warra

nty of habitability
, which has alway s been to pr otect homeowner s, as well as

our supreme court’s direc t mandate that we inte rp re t an y disclaimers of such war ranties strictly ag ainst the builder. See Peterse n , 76 I ll. 2d at 43 (“ ‘[O] ne seeking the benef it of such

a disclaimer must not only show a conspicuous provision whi ch fully discloses the
conseque nces of its inclusion but also that such was in fac t the agree ment rea ched. The heavy burden thus place d upon the builder is completely j u s t i fi ed, for by his asser tion of the disclaimer he is seeking to show that the buyer has relinquished protec tion aff orded him by publi c policy

. A knowing waiver of this protec tion will not be rea dily implied.’ *** [C itation.] ” (Empha sis omit ted.)). ¶ 34 Since we conclude that the disclaimer protec ts neither Platt nor EZ Masonry
, we hold that the circ uit court err ed i n gra nting their joint section 2-619 motion to dismiss on this basis (735 I L CS 5/2-619 (West 2008)). As P l at t ’s motion to dismiss was based solely on this
g round, the c ondominium association may proce ed with its cause of action ag ainst it. ¶ 35 W e m u s t n ex t d et ermine, howeve r, whether the condominium association may als o proce ed ag ainst EZ Masonry

. Be fore the circ uit court, and ag ain i n i t s cross-a ppeal, EZ Masonry argues that the condominium association may not as s er t i t s implied war ranty of habitabil i ty claim ag ainst it without first showing that Platt is insolvent. In support of this

con t en t i o n , EZ Masonry relies on the decision of our appellate court in Minton v. The Richards Group of Chicago
, 116 I l l. App. 3d 852 (1983). On the other hand, the condominium association argues that Minton was modified by our orig inal decision in Pratt I
, which, it claims, extended the implied war ranty o f h a

b it a b il ity to subcontrac tors, reg ardle ss of t he sol vency of t he developer- builder. For the re asons that foll ow, we disagree with the condominium associati o n an d reve rse the finding of the circ uit court with respe ct to this issue. ¶ 36 In Minton
, the b u i l d er- vendor from whom the pl aintiffs had purcha sed t heir home had since dissolved as an entity

. Minton
, 1 1 6 I ll. App. 3d at 853. Prior to the dissoluti on, the plaintiffs had demanded that the bui lder-ve ndor cor rec t the peeling paint on the out side of their home. Minton
, 116 I ll. App. 3d at 853. The builder-ve ndor made no repa irs, and when it dissolved, the plaintiffs pursued their brea ch of the implied war ranty of habitability claim
ag ainst the responsible subcontrac tor. Minton
, 116 I ll. App. 3d at 8 5 3

. T h e circ uit court dismiss ed the plaintiffs’ claim ag ainst the subcontrac tor and the plaintiffs appea led, arguing that the i mp l i ed warranty of habitabili ty should be applied to a subcontractor of a buil dervendor wher e the builder-ve ndor is insolvent. Minton
, 116 I ll. App. 3d at 854. The court in Minton agree d with the plaintiffs and held that “whe re the innocent purcha ser has no rec ourse to the builder-ve ndor and has sustained loss due to the fa ulty and latent defe ct in the ir new

-10-home cause d by the subcontrac tor, t h e wa rr anty of habitability applies to such

subcontrac tor.” Minton
, 116 I ll. App. 3d at 855. In coming to this decision, th e co u rt

rea soned: “Purcha sers from a builder-ve ndor depend upon his ability to construct and sell a home of sound structure and his ability to hire subcontrac tors capa ble o f building a home of sound structure

. The plaintiffs here had no control over the choice of [t he builder-ve ndor]
to paint the eave s and windows of their home, and [t he builder-ve ndor] was in the better position to know which subcontrac tor could perf orm the work adequately .” Minton
, 116 I ll. App. 3d at 854. Noting that the purpose o f the policy was to “prote ct innocent purcha sers,” the court conclude d that the plaintiffs could proce ed ag ainst a subcontrac tor wher e the builder-ve ndor was insolvent. Minton , 116 I ll. App. 3d at 855. ¶ 37 Severa l y ea rs af t er Mi n t o n , i n W

a s h i n g t o n Courte Condominium Ass’n-Four v

. W ashington-Golf Corp.
, 150 I ll. App. 3d 681 (1986), our appellate court revisited the issue of whether the implied war ranty of habitability can be extended to subcontract o rs

. I n that

case , the rec ord rebutted the plaintiffs’ asser tion that the builder-ve ndor was insolvent, and the court was fac ed with deter mining whether the war ranty could be applied to a subcontrac tor even wh ere the builder-de veloper was solvent. W ashington Courte
, 150 I ll. App. 3d at 689. The appellate court held that th e wa rr anty could not be extended to the subcontrac tor, wher e the builder-ve ndor was still solvent. W ashington Courte
, 150 I ll. App. 3d at 690. The court explained that the Minton decision did nothing more than “ca rve[ ] out a[ ] [narrow] exception to the ex clusion of subcontra ctors,” limit ed to situations wher e the builder-ve ndor is insolvent. W ashington Cour te , 150 I ll. App. 3d at 688-89. ¶ 38 In doing so, the appellate court reje cted the plaint i ff s ’ re l iance on our supreme court’ s decision in Redarowicz

. See W ashington Courte
, 150 I ll. App. 3d at 689-90. In that case , the
supreme court rec og nized that a subsequent purcha ser needs the same protec tions as does an initial purcha ser ag ainst latent defe cts in the construction of a residenc e. Redarowicz
, 92 I ll. 2d at 183. Acc ording ly
, the Redarowicz court found that privity of contra ct was not require d in a brea ch of war

ranty of habitability action and held that th e wa rra nty extended to subsequent purc haser s. Redarowicz , 92 I ll. 2d at 183. The plaintiffs in W ashington Cour te used the “ lack of

privity ” languag e of Redarowicz to a rgue that that decision expanded the
scope of potential defe ndants in a brea ch of war ranty o f habitability to include all subcontrac tors. W

ashington Courte
, 150 I ll. App. 3d at 6 8 9-90. The appellate court disag ree d, holding that Redarowicz was “spec ifically limit ed to extending the cause of action
to subsequent purcha sers.” W ashington Courte
, 150 I ll. App. 3d at 689. As the court explained: “Althoug h Reda r o w i cz extended the availability of the cause of action to include subsequent p u rc h as er s , it did not extend the scope of possible defe ndants beyond the builder/vendor or builder/d e v e lo p er to include subcontrac tors. The court expressly stated that the rationale for extending the cause of action to subsequent purcha sers was to assure that builder/vendors wer e held acc ountable and could not esca pe liability simply beca

use the initial purchase r had sold the home befor e the latent defe cts beca me patent def

ects.

-11-Th e q u est ion of extending the scope of defe ndants to include subcontrac tors was not befor e the Redarowicz court.” W ashington Cour te , 150 I ll. App. 3d at 688.
Acc ording ly
, the W

ashington Courte court conclude d that nothing in Redarewicz extended the scope of Minton to subcontrac tors, wh o s e builders-de veloper s wer e still solvent. W ashington Cour te , 150 I ll. App. 3d at 688-89. ¶ 39 In the prese nt case , the seller, Way ne, i s i n solvent, but the g ener al contra ctor-builder
, Platt, is not. Acc ording ly
, applying the rationale of Minton and W ashington Courte to the fac t s o f t h is case , we are compelled to conclude that the condominium association cannot proce ed ag ainst the subcontra ctor, EZ Masonry , while it stil l has rec ourse a g ainst Platt. ¶ 40 In comingto this conclusion, we reje ct t he condominium association’s reliance on our orig inal decision in Pratt I

. See 1324 W

. Pratt Condominium Ass’n
, 404 I ll. App. 3d at 617. The condominium association attempts to arg ue that that decision modified and extended Minton to include all subcontrac tors, reg ardle ss of the solvenc y of t he buil der- vendor. W e strong ly disag ree

. Our orig inal decision in Pratt I nowher e discussed or even considere d the applicability of the implied war ranty of h ab itability to subcontrac tors. Rather, as alre ady articulated above, the decision cente red only on the applicability of that war ranty to builders who are also not vendor s. See 1324 W . Pratt Condomini um Ass’n , 404 I ll. App. 3d at 617. In extending the wa rr anty to such builders, we described the history of the war ranty of habitability in our state, and mere ly listed the Mi n t o n d ecision as one among many way s I llinois courts have expanded the doctrine. See 1324 W

. Pratt Condominium Ass’n
, 404 I ll. App. 3d at 616. We did so without explaining the rationale of why the war ranty was extended
to include the particula

r defendants. S ee 1324 W

. Pratt Condominium Ass’n
, 404 I ll. App. 3d at 616 (“the class of potential defe ndants has been expanded. See, e.g. , Park v. Sohn
, 89 I ll. 2d 453 (builder- vendor need not be in the business of building); Hefler v. W right
, 121 I ll. App. 3d 739 (1984) (builder who ere cted house manufa cture d by another party ); Minton v. The Richards Group of Chicago
, 116 I ll. App. 3d 852 (1983) (s ubcontra ctors); Tassan v. United Dev elopment Co.
, 88 I ll. App. 3d 581 (1980) (deve loper)” ). More importantly
, aside from t h e afor ementioned brief and singula r citation to Minton
, we never discussed the holding, rationale
, or viability of that decision. As s u ch
, o u r i n t ent was not to expand or

overr ule Minton
, which to this day rema ins g ood law in this state. See W ashington Courte
, 150 I ll. App. 3d at 688 (citing Minton , 116 I ll. App. 3d at 855).

¶ 41 I I I . CONCLUSI ON ¶ 42 For all of the afor ementioned rea sons , we conclude that the condominium association
may proce ed with its cause ac t ion ag ainst Platt, but may not proce ed aga inst EZ Masonry
, so long a s Platt i s solvent. We, therefor e, re verse the judg ment of the c ircuit court.

¶ 43 Reverse d.

-12-